Legal Briefs: The Ups and Downs of Life in the Law

By Roger Witten

In Legal Briefs: The Ups and Downs of Life in the Law, editor Roger Witten takes us behind the scenes of some of the most fascinating court cases of the last few decades, while introducing us to the sometimes strange, and sometimes comical situations these lawyers have experienced during their long careers.

 

This collection features twenty lawyers of varying backgrounds and expertise writing with pizzazz, humor, and passion about such significant events as the Watergate break-in; the 9/11 Commission; the Iranian hostage crisis, and more. They write of tackling issues concerning money in politics and Citizens United; same-sex parental custody rights; and the contempt charge against Martin Luther King Jr. And we are also treated to intimate portraits of some unique clients and towering figures in the legal world.

 

This book will delight all readers, not just those with a specific interest in the law. As Roger Witten writes in the introduction, these stories “reveal the ups and downs of a life in the law by telling stories that are dramatic, moving, and/or amusing Some are tongue-in-cheek. Others are serious but never dull.”

 

• Language: English
• Publisher: Prospecta Press
• Release date: Apr 30, 2024
• ISBN: 9781632261380

Roger Witten

Roger Witten graduated from Dartmouth College and Harvard Law School. On the suggestion of a law school professor, Archibald Cox, he clerked for Judge Harrison Winter on the U. S. Court of Appeals for the Fourth Circuit. When Cox became the Watergate Special Prosecutor, Judge Winter graciously wrote to Cox recommending that Witten join Cox’s staff, which Witten then did.    In 1975, Witten joined and later became a partner at Wilmer Cutler & Pickering, now called WilmerHale. He practiced in Washington and New York, focusing on large-scale civil and white-collar criminal matters that typically had international dimensions. He specialized in Foreign Corrupt Practices Act matters; and was a leading advocate for campaign finance reform for clients that included Senators McCain, Feingold, and van Hollen, Common Cause, Democracy 21, and the Campaign Legal Center. He is now retired from active law practice. 

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INTRODUCTION

Who knew lawyers had good stories to tell about the ups and downs of their lives in the law, and that those stories would make enjoyable reading for the general public, as well as for legal professionals? This book is just that—a curated anthology of twenty-four short essays written by distinguished lawyers that, in plain English, tells stories that are interesting, moving, and/or amusing. Its title is Legal Briefs because the essays are law-related and short.

Let me assure you—you do not need to be a lawyer to enjoy these stories. Some are tongue-in-cheek. Others are serious but never dull. Some discuss historical public events. Others do not. You will find proverbial pearls of wisdom in many of them. Their variety defies any attempt to find an arc or theme that connects one with all the others. So, while one reader may wish to read this volume from beginning to end, another reader might prefer to graze. But by all means it is worth reading them all.

The subject matters of these stories are diverse and compelling. Taken individually or together, they reflect the ups-and-downs of a life in the law. The book is divided into three sections, but many of the essays would fit in two or all three sections.

Section One is called Events. The section begins with an essay I wrote about efforts to enact and defend the constitutionality of much-needed campaign-finance reform. The second essay, written by Dan Marcus who was the General Counsel of the 9/11 Commission, provides an insider’s view of the give-and-take between the White House and the Commission. The third and fourth essays are first-hand accounts of the negotiations that led to the release of the American hostages in Iran by two participants in that drama, Robert Mundheim and Richard Davis. Next comes Henry Hecht’s personal recollections of his involvement in prosecutions conducted by the Watergate Special Prosecution Force. Stuart Gerson, a Department of Justice veteran, addresses the heavy responsibilities of prosecutors when a public figure is a subject of investigation—a topic that will clearly resonate in light of recent events. Finally, Trevor Potter returns to the topic of campaign finance in a blistering critique of the Federal Election Commission, which he once chaired.

The subject matter of Section Two is People. It begins with an essay of mine about Watergate Special Prosecutor Archibald Cox (on whose staff I served) and the Saturday Night Massacre. The next article, by Andrew Tannenbaum, is a highly personal account of the effect the tragedies of 9/11 and its aftermath had on federal appeals court Judge Wilfred Feinberg. Next in line is Jim Quarles’s reminiscences about the legendary Boston trial lawyer James St. Clair in the context of a somewhat wacky case. Then we have Dick Janis’s chronicles of the defense of indicted Iran- Contra figure Albert Hakim. Next are Carol Lee’s reminiscences and insights about former Supreme Court Justice John Paul Stevens, for whom she clerked. Lou Cohen tells of the good works of two legal giants—Lloyd Cutler and Charles Horsky. In the next essay, Bill Kolasky treats us to a bit of history, as he recounts the tangled tale of Senator John Sherman, the nation’s first trustbuster. Nelson Johnson tells a seamy story about dirty politics in New Jersey (who knew) in which patrician lawyer Arthur Vanderbilt and Boss Frank Hague are the principal characters. The section ends with my essay about a very unusual client.

The third Section is called Experiences. Harriet Newman Cohen opens the section with the riveting story of a highly unusual child-custody case she successfully tried. Martha Minow’s contribution explores a situation where the client’s interest in defeating a lawsuit was in tension with the lawyer’s desire to establish a new precedent. Michael Helfer reports on two delightful and unusual court appearances. Warren Cooke’s entertaining essay recounts his adventures doing a large transaction in Zaire. Following on the theme of international law practice, I contributed an essay about my own adventures abroad. Next come two pieces, one by Mark Kessel, and another by Marty Kaplan about their first cases. The final section and the book close with one more essay by me.

The top-tier lawyers who wrote this volume’s Legal Briefs mostly are friends and colleagues from college, law school, the Watergate Special Prosecution Force, my law firm, now known as WilmerHale, the board of the Campaign Legal Center, our thirty years in Washington, D.C. and our twenty years in New York. They are all highly capable lawyers with sterling reputations—and they have good stories to tell. Each chapter begins with a short biography of that chapter’s author.

SECTION I

EVENTS

1

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For One Brief Shining Moment

by Roger M. Witten

BACKGROUND

In reaction to the campaign finance abuses revealed in the Watergate scandal, Congress in 1974 amended the Federal Election Campaign Act (FECA) to strengthen its provisions regulating campaign contributions to and expenditures by individuals. (Earlier laws had banned such contributions and expenditures by corporations and labor unions.)

In early 1975, opponents of campaign finance reform sued, challenging the constitutionality of the FECA, arguing that its restrictions on campaign donations and expenditures infringed on the First Amendment’s guarantee of Freedom of Speech.

During my time as an Assistant Watergate Special Prosecutor, I learned a lot about campaign finance laws. It so happened that just at the time I joined Wilmer Cutler & Pickering, the League of Women Voters retained the firm to defend the FECA’s constitutionality in court. Given my prior experience, I joined the team as a junior lawyer.

The Supreme Court in 1976 delivered a mixed opinion in the case, which was called Buckley v. Valeo. The Court held that the First Amendment was not violated by reasonable regulations of contributions to candidates, but that expenditures by citizens to support a candidate that were not coordinated with the candidate’s campaign were protected speech.

In the years following the Supreme Court’s decision, both parties and their candidates exploited loopholes in what remained of the FECA, rendering it ineffective. One such abuse, referred to as soft money, involved federal officials and candidates raising money from corporations and large donors ostensibly for use in unregulated state elections. In fact, soft money was used, at least in part, to support or oppose federal candidates. Another abuse, known as sham issue ads, involved broadcast advertisements that purported to be constitutionally protected speech about an issue, but were actually thinly disguised electioneering messages that supported or attacked candidates.

MCCAIN-FEINGOLD BIPARTISAN CAMPAIGN REFORM ACT

In response to these abuses, Senator John McCain—one of the few Republicans who championed campaign-finance reform—worked across the aisle with Senator Russ Feingold, a Democrat, to draft the Bipartisan Campaign Reform Act, known informally as McCain-Feingold (or BCRA). After several efforts to enact the bill failed, Congress in 2002 passed the bill and President George W. Bush signed it. Curiously, President Bush signed this landmark legislation without holding a signing ceremony and without inviting Senators McCain and Feingold to the White House.

It had been clear for some time that, if Congress enacted McCain-Feingold, the law would be challenged in court. Accordingly, the law’s sponsors and a coalition of supporters began preparing for the court battle before Congress passed the law.

One delicate question they confronted was: who would lead the court defense. Over the years I had deepened my campaign finance law expertise. I worked on campaign contribution investigations as a member of the Watergate Special Prosecution Force and litigated, pro bono, numerous campaign-finance cases while in private practice. A number of people aspired to the position, but several members of the reform group thought I should lead it.

They arranged for me to meet with Senator McCain. We met on the Hill. Mindful that he was a busy guy and didn’t like orations, I confined myself to just one sentence: Senator, if you can get this bill passed, we will defend it and we will win. He didn’t ask any questions. I must have said the right thing, as soon thereafter I was selected to lead the team representing McCain, Feingold, and their co-sponsors.

The law, as enacted, included two unusual procedural provisions. First, the bill provided that members of Congress had a right to participate in the litigation as a party. This was important because it effectively required that the court that would hear the case would permit us to participate as a full-party defendant, and not merely in the more limited capacity of an amicus curiae. This was crucial because it was unclear whether the Bush administration would allow the Department of Justice to defend the law, and there was concern that any DOJ defense of the law might not be as passionate or robust as the defense we intended to mount.

Second, the law provided that the case would be heard initially by a three-judge district court with a direct appeal to the Supreme Court (in contrast to the usual procedure, which is for cases to be heard first by a single district-court judge, then by a three-judge appeals court, and then by the Supreme Court if it chose to hear the appeal).

MCCONNELL V. UNITED STATES

As expected, a slew of parties—including Senator Mitch McConnell, the NRA, and the ACLU—sued the day President Bush signed the bill into law. The various lawyers on the plaintiff’s side jockeyed for position, each wanting the decision, which they expected would invalidate the law, to bear their client’s name. The lead plaintiff ended up being Senator McConnell, and the case has been known as McConnell v. The United States ever since.

The press called the plaintiffs’ lawyers the dream team, because it included such luminaries as Ken Starr, Floyd Abrams, Charles Cooper, Jan Baran, and Bobby Burchfield. This stirred our competitive juices, since our team was not exactly made up of hacks. To the contrary, it included, among others, Seth Waxman (former Solicitor General), Randy Moss (now a federal judge), Burt Neuborne (renowned NYU law professor), Fritz Schwartz (legendary Cravath partner, Brennan Center leader, and full-time sage), Fred Wertheimer (of Common Cause and Democracy 21 fame), Trevor Potter (former FEC Chairman, counsel to Senator McCain, and later founder of the Campaign Legal Center), and Josh Rosenkranz (Brennan Center lawyer), not to mention the brilliant and incredibly devoted team of junior lawyers at WilmerHale and other firms and organizations.

The members of our coalition were committed to the successful defense of the BCRA, but were not always on the same page as how best to conduct the litigation. While my focus remained on the merits, I spent a fair amount of energy acting like an air traffic controller, trying to keep the sixty-two supersonic legal eagles on our team from crashing into each other. The DOJ and the Federal Election Commission did mount a defense of the BCRA, which was welcome, but created further coordination challenges.

All the lawyers on our team agreed on one strategic point: the key to the defense was to build a detailed-factual record of the rampant abuse, corruption, and appearance of corruption that was so debilitating to our democracy. We needed these facts to support our legal argument stating that there was a demonstrable compelling need for each provision of the BCRA. Such a showing was necessary in providing a factual predicate for the legal conclusion that these provisions did not violate the First Amendment’s protection of speech. We did not want to give the Justices any leeway to decide the case based on any pre- or mis-conceptions they may have had about the extent, severity, and impact on the functioning of our democracy of the abuses the BCRA addressed. The plaintiffs took the outlandish position that there was no need for the court to have a full set of facts before it.

At the hearing before the three-judge court on this important issue, we managed to persuade them to our way of thinking. Giving us a critical strategic victory, the court allowed the litigants to build a factual record—that was the good news. The bad news was that the court gave us a very short deadline to complete the work. We all worked frantically over the next weeks, and achieved our objectives more or less.

After this fact-gathering phase of the case had been completed, the three-judge court held a hearing on the merits in a packed ceremonial courtroom in Washington, D.C. The dream team ably made its arguments. Seth Waxman, Randy Moss, and I argued for the BCRA sponsors. The court upheld portions of the law, but struck down other provisions. We immediately appealed to the Supreme Court, as did the other parties.

As we approached the Supreme Court argument date, Seth Waxman graciously inquired whether I wanted to split the oral argument with him. In response, I asked Seth how many Supreme Court arguments he had previously made. The answer, as I recall, was thirty-three. I thanked Seth for his thoughtfulness and said that since his Supreme Court experience was exactly thirty-three cases greater than mine, and since this case was so important, it would be the wrong time and place for my first Supreme Court test drive.

The oral arguments in a packed Supreme Court were vigorously presented on both sides. Seth made a strong argument. The Justice’s questions did not provide a basis for confidently predicting the result.

But when in 2003 the result was announced, it was cause for jubilation. The Court upheld the constitutionality of every single provision of the statute. Validating our strategy, the Court’s opinion emphasized the reams of disquieting evidence in the record [which] convincingly demonstrates… and the unmistakable lesson from the record in this litigation. Justice Sandra Day O’Connor cast the deciding vote to uphold the BCRA. The dream team had lost. Senator McConnell had given his name to a losing case.

DOWNHILL FROM THERE

That was the highpoint. Some years later, the composition of the Supreme Court changed. In the infamous Citizens United case, the Court, over our objections as an amicus curiae, effectively overruled McConnell. Since then, it has been very challenging to persuade courts to uphold measures to curtail the rampant abuses that pollute federal and state elections. With an apparently entrenched conservative majority on the Court, it may take a generation before the folly of Citizens United can be rectified.

2

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The White House and the 9/11 Commission

by Daniel Marcus

Daniel Marcus graduated from Brandeis University and Yale Law School. He clerked for Judge Harold Leventhal on the U.S. Court of Appeals for the District of Columbia Circuit. His career in private practice was spent entirely at Wilmer Cutler & Pickering in Washington, D. C. Dan also had several stints of public service. During the Carter administration, he was Deputy General Counsel of HEW and General Counsel of the Department of Agriculture. In the Clinton administration, he was Senior Counsel in the White House Counsel’s office and then Associate Attorney General of the U.S. Later, he became General Counsel of the 9/11 Commission.

THE 9/11 COMMISSION

In the wake of the 9/11 attacks—the most traumatic event for Americans since Pearl Harbor—there were calls, particularly from the families of the victims, to create an independent commission to investigate and report on what happened, what caused the attacks, and what steps could be taken to prevent such events in the future. The Bush administration and many Republicans in Congress resisted the idea, but after a long fight led by Senators Joe Lieberman and John McCain, Congress approved the creation of an independent bipartisan commission in the fall of 2002. Fatefully, as we shall see, the statute provided that the Commission would be located in the legislative branch rather than the executive branch of our government.

The Commission was chaired by Tom Kean, the former Governor of New Jersey. Former Congressman Lee Hamilton was Vice Chair, and the remaining commissioners were equally divided between Republicans and Democrats. I served as General Counsel.

In short order, I was plunged into difficult and time-consuming negotiations with lawyers in the White House Counsel’s office. Our requests included: 1) interviews with high-level White House officials and cabinet officers and their testimony at public hearings, and 2) access to top-secret National Security Council (NSC) documents and CIA briefings to the president (the now famous Presidential Daily Briefs or PDBs). At the outset we were met with resistance based on the related doctrines of Separation of Powers and Executive Privilege.

The Separation of Powers doctrine grows out of the Constitution’s allocation of various powers to the three branches of our government—the executive, legislative, and judicial branches. Under the doctrine of Executive Privilege, which the Supreme Court has recognized, the president and other senior officials of the executive branch may in certain circumstances decline to produce information where production of the information would cause harm and/or chill candid advice.

Alberto Gonzales, then Counsel to the President, worried that if the White House granted access to information in its possession to the Commission, a legislative-branch agency, it would create a precedent that would hamper the White House in its future dealings with Congress. His concerns were shared, to some extent, by the Office of Legal Counsel (OLC) in the Department of Justice.

We argued that the happenstance of the Commission’s location in the legislative branch was irrelevant: the Commission was a one-time only investigative entity that had no legislative powers that should trigger a Separation of Powers analysis. For months, this argument met a stone wall. Therefore, a number of compromises had to be negotiated, along with the adoption of euphemisms insisted on by the White House.

First, we made a few tactical concessions: We did not initially press to interview the President or Vice President, and we agreed not to seek documents that were direct communications to either President Clinton or President Bush. Also, we did not ask witnesses questions about conversations with the President.

We got lucky. It turned out that the key NSC memoranda on counterterrorism and the Al Qaeda threat were from Richard Clarke, the NSC’s counterterrorism chief, to the National Security Advisor (Sandy Berger in the Clinton administration, Condoleezza Rice in the Bush administration). Berger regularly replaced Clarke’s name as the author of the memos with his own, and sent them on to